A Mandate for Diversity and Inclusion

March 19, 2019

On January 27, 2019, general counsel from 170 companies representing retail, manufacturing, health care, software, publishing, life sciences, hospitality, financial services, and other industries published an open letter to the legal community expressing their disappointment that “many law firms continue to promote partner classes that in no way reflect the demographic composition of entering associate classes.” Collectively, these companies annually spend hundreds of millions of dollars on outside legal services. In the letter, these influential legal leaders announced that they will hire outside counsel from “law firms that manifest results with respect to diversity and inclusion.” A panel discussion led by general counsel who signed the letter addressed critical issues and informed both inside and outside counsel of the commitments the legal community must make to ensure a diverse and inclusive legal marketplace.

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Geri Haight: What was your response to Paul Weiss’s Partner Announcement on LinkedIn?

Elaine Divelbliss: One morning I went to my feed and this image on the screen popped up. I tried to scroll, thinking that this can’t be. It struck me so powerfully that I needed to share. I’m not a huge sharer, but I reached out to this amazing networking group that I’m a part of called Women’s General Counsel network, which is a group of female GCs. I reached out to the group and said, “Does anyone else see something wrong with this picture?” and that started a productive conversation. It wasn’t just about being shocked and appalled. It was about the significance of this partner class at Paul Weiss.

Haight: You three signed, on behalf of your companies, to a letter in reaction to this partner announcement. Can you tell us how that letter came about, and why it was important for each of you to participate as signatories on the letter?

Su-Jin Lee: I remember it happened really quickly. Very organically. The conversation started that same day and we had more than 50 if not 100 members talking about why this is still happening. Are there things that we could be doing to continue the conversation or move the needle? The same day or the day after one of the GC members suggested penning this letter, and within 48 hours the letter was drafted. We shared it with our other colleagues, and in a couple of days we had about 170 signed on.

Haight: The response to this posting and the conversation around it generated quite a lot of press. The statistics today reflect that the number of diverse partners is progressing at a glacial pace. I think this is the undercurrent that started the response. In terms of your own experiences and why you thought it was important to engage in this way, what were you hoping to achieve by sparking the creation of this letter?

Tiffany Morris: I think we all had this visceral response to the image. Part of the reaction is starting a dialogue and drawing attention to the issue. We are coming from the world of advertising. When you see that image, it’s not effective. You have a negative reaction to it. We are ultimately consumers of a product, which is legal services, and part of it was sending a message to the firms: this is not the right way to target an audience of GCs, many of whom are coming from diverse backgrounds.

Haight: I think representation of women has slightly improved, but the numbers overall, particularly for attorneys of color, have been progressing very incrementally, as well as for lawyers with disabilities. Aside from signing on to the letter and brining some sunlight to this issue, how else can in-house counsel help move the needle on this issue?

Divelbliss: Something that I attempt to do is to exercise a more personal touch. Whenever I reach out to a law firm in search of outside counsel, I make it crystal clear that my expectation is that there will be a diverse team working on my matter. If there is a female associate assigned to the matter, I go out of my way to ensure that that person becomes my primary point of contact. I really make an all-out effort to elevate their standing in the team and at the firm. I think getting diverse representation at the table is the first step, and then ensuring that it remains visible and that all those folks are being drawn in to the process is critically important. Personally, I try to ensure those folks are being acknowledged and I’m making a point to reach out and ensure they are at the table and stay at the table.

Lee: I think also the relationship partners that I have with the many firms that we work with do get the credit for the work that we are engaging them for. It does happen though, that no one on that team gets origination credit. When we start asking those questions, such as through formal audits, then they realize that they have to walk the walk and do what they’re saying that they’re doing — not just showing up and making it appear one way, but in reality, it’s not.

Morris: I believe in rewarding good behavior. I think that that’s the best way to interact with firms, whether large or small. When I signed the letter, I made a point of reaching out to one of the larger firms we work with which has a really strong female partner who does a lot in the community to bring the network of women together. I thanked her and said this is part of the reason we continue to work with you as a firm. Over the years we have also engaged a lot of smaller boutique firms where it is a more personal relationship — I have a really clear understanding of the mix of attorneys and backgrounds. I make it clear to them and my own community that those are the types of partners we want to work with.

Haight: How have you gone about procuring legal services with diversity and inclusion in mind?

Lee: Honestly, we are small enough that we are not in the RFP process a lot, but I work with more than a dozen law firms. Frankly, I ask the question. If you put it out there that this is important to our business but that the diversity of teams that you bring me will ultimately bring me a better result, I think organically they understand that and bring those teams to me. There are instances when the team hasn’t been brought to me, and I’ve asked for a whole other team. You would be surprised, but they’ve done that for me. Part of what we need to do as the buyers of these professional services is to be very upfront and understand that in most cases the folks that you’re talking to have the discretion to make those changes within your team fairly quickly.

Haight: Are there other things that you do that you would encourage others in the audience to try to increase diversity on the teams of lawyers who provide services to them or can help people come up in the ranks who have the characteristics you’re looking for in a lawyer?

Divelbliss: I think one thing that the Women’s General Counsel Network is effective at is information-sharing. On a daily basis, one of us is looking for outside representation. The network springs to life upon a request for a referral and they come flooding in — typically in the form of women, people of color, or other groups that are generally underrepresented. You don’t have to look hard to find amazing representation from any of those groups. The information-sharing goes on among that network to find the lawyer whom you’re looking for, whatever the characteristic may be.

Morris: It’s a little challenging to formalize these initiatives. I think so much of this is really personal and I go back to the idea of us as consumers of services. I do have really direct conversations with law firm partners. Law firms, as we know, are going through an evolution. Sometimes law firms don’t fit for your growth company. I present the culture and tech, the things we care about, and tell them to match their services and offerings to what we need. Sometimes, you have to draw the line and say this is what we’re looking for. If you can’t provide it, we won’t continue working with you.

Haight: Some of the press called this an ultimatum for law firms. Do you agree that that is what this was, and what does that mean if so?

Lee: I personally did not intend for it to be an ultimatum. As a woman and an attorney of color, I thought this was the opportunity where I have a larger voice and I am able to move the needle. Let’s have conversations, let’s get everybody talking about it, and let’s provide their opinions. I can’t say everyone agrees with us. Putting this back out and having a public conversation for our colleagues in law firms, they understand that they have our support and we have to do this together. A mandate by companies will not change what is happening systematically in these law firms. I think this is just the beginning.

Divelbliss: From my perspective, I didn’t necessarily view this as an ultimatum, but I wanted law firms to understand that their efforts with respect to diversity were a critical piece of any decision that is made around law firm services. In my view, it was intended to invite, encourage, or even demand self-reflection on part of the law firms. Paul Weiss responded, and other firms did as well. I think they appreciated the perspective that we were raising in this letter and I think it did in fact lead to self-reflection. How does it come to be that these law firms put so much effort into recruiting incredibly diverse classes from diverse law school bodies, but the group that’s hired 10 years later looks like this picture? What’s happening? That’s the type of self-reflection that I was inviting in signing onto the letter.

Haight: What is happening? Do you have the answer?

Divelbliss: The first line of defense would be that’s it’s self-selecting — women and people of color are peeling out, what can you do? Most of us who are thoughtful members of the legal profession would think that’s not a sufficient answer. I think a lot of it is the promotional track at law firms, which is unique. You have this 10-year span until you hit a cliff — it’s do or die. Life happens during those 10 years. It’s the folks who make it to the top and are mentoring others along the way. There’s a lot of data to support the fact that folks tend to mentor, consciously or not, people who remind them of themselves. That’s a challenge we all confront. There are a host of factors.

Lee: It could be unconscious bias within the decision-making in these firms. It could be the obstacles that a lot of these associates are still facing, who don’t have access to the networks within those firms to get the adequate sponsorships or mentorships that it takes to reach those levels at the law firm. I don’t think it’s an easy answer. It also depends on the culture of the firms as well. There have been improvements. The number of affinity groups within large law firms are exponentially higher than when I was there. But do those groups have the leverage to make significant changes and create pathways for promotion or opportunities for these associates moving up in the ranks? If you’re constantly putting obstacles in the way, I think that it’s a clear reason why a lot of them are leaving.

Morris: We’ve talked in this group about “birds of a feather flock together.” People tend to hire people who are in their network. When you have a longstanding network of a certain type of person, it can be difficult to build up business if you don’t fit that mold. The second issue is that women, and particularly women of color, tend to bear more of the caretaking responsibilities in their lives. We know that law firms are a grind, and not hospitable environments for people who have a lot of personal commitments to their families. The tech community has a “work hard play hard culture,” and I do think that law firms can draw on some things we’ve done in tech to create environments that support people working hard, growing in their careers, providing great services, and balancing that with the reality that we are all living our lives day-to-day — we have kids, parents, and things to get done. That’s an area where I would love to see law firms modernize a bit.

Haight: There has been a trend of having law firms create a position such as “diversity and inclusion” partner. Is that moving the needle, or is that cynically for show? What are your thoughts on that role, how it can be used, and if it’s effective?

Lee: It’s definitely a step in the right direction, but we will know if it’s not authentic. Working in the Valley in the business of law, we have a lot of legal innovation. We want to see that same level of innovation in diversity. If that is the strategy that these heads of diversity groups are taking, hopefully we will see more creative thinking and strategies to address this problem. It’s a step in the right direction, but it can’t be to just recruit your incoming class. The focus has to be on how to elevate them once they’re here at the firm to larger decision-making roles for the business.

Divelbliss: I think that along with this letter and our frustration and impatience at this point, there has been more litigation activity recently. I’ve seen women stepping forward and filing suits against law firms. Whether or not we move the needle as clients, I do believe that having law firms held to account by associates who are stepping up and saying this isn’t fair has real potential to move the needle now that law firms are facing litigation risk. Twenty years ago, no one would have stepped forward. There are firms now that are serving aggrieved associates looking to file suit against law firms. The installation of a diversity officer matters only to the extent that it is meaningful. If it’s just a figurehead position, it’s worthless. However, if an individual who is particularly talented and committed is leading the charge on behalf of a firm that is supportive and committed, it can absolutely move the needle internally.

Haight: Have you participated in formal or informal mentoring programs? Do you think they’re effective?

Morris: I think mentoring is really effective. We are all here because at some point in our careers we were mentored, in many cases by men. That takes someone reaching out to someone who doesn’t look or act like them and helping them along in their career journey. Go back to your workplace, and mentor someone who isn’t exactly like you in how you look, in your life choices, career, etc. That can go a long way — we all benefit from a personal board of directors. It’s a tangible way to move the ball forward.

Lee: I’m definitely a beneficiary of the mentorship I received at various stages in my career. A lot of them have been men. We need to be talking to everyone at that level of power in firms, the decision-makers. For me, mentorship is about the ability of someone to provide challenging opportunities for your mentees. Challenge them, give them those stretch roles where they can flex their muscles to show you, your peers, and clients what they can do. Expand and expose — expand them to networks. Bring them to your pitches. It’s those opportunities to develop exposure, whether it’s in meetings that you’re having, in front of a judge, pitching, etc. I want to hear from them and I want to hear their perspective. There are really easy things that can be done.

CLE Materials

Source

"A Mandate for Diversity and Inclusion." Geri Haight, VP and Deputy General Counsel at Panera Bread; Elaine Divelbliss, General Counsel at Kargo; Su-Jin Lee, VP and General Counsel at POPSUGAR; Tiffany Morris, General Counsel and VP of Global Privacy at Lotame Solutions. ANA 2019 Advertising Law and Public Policy Conference, 3/19/19.

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